UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: July 12, 1976.
MIANUS RIVER PRESERVATION COMMITTEE, FRANK E. WOLF, CHARLES H. BIEDERMAN, AND ROBERT D. HENKLEIN, PETITIONERS,
ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY AND COMMISSIONER, STATE OF CONNECTICUT, DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENTS
Petition to review a modification by the Commissioner of the State of Connecticut Department of Environmental Protection of a National Pollution Discharge Elimination System permit which had been issued by that Commissioner pursuant to § 402 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1342 (Supp. IV). Petition for review dismissed.
Smith, Hays and Meskill, Circuit Judges.
MESKILL, Circuit Judge:
The Mianus River Preservation Committee and several named individuals who own property along the banks of the Mianus River in Greenwich, Connecticut petition this Court for review of a modification of a National Pollution Discharge Elimination System ("NPDES") permit made by the respondent Commissioner of the State of Connecticut Department of Environmental Protection ("DEP"). The permit had originally been issued by DEP to the Greenwich Water Company ("Water Company") under § 402 of the Federal Water Pollution Control Act Amendments of 1972 ("FWPCA").*fn1 Petitioners alleged jurisdiction in this Court pursuant to § 509(b)(1)(F) of the FWPCA.*fn2 For the reasons set forth below, we dismiss the petition for lack of jurisdiction in this Court.
The underlying controversy in this case stems from the fact that the Water Company, which maintains a water filtration plant in which it chemically treats water taken from the reservoir created by a dam on the Mianus River, has for many years discharged chemically treated flocculants into the river below the dam. This practice has apparently resulted in deposits of these flocculants up to five feet in depth in some places in the river below the dam. Consequently, in February, 1972, DEP issued order No. 979, mandating that the Water Company complete facilities for treatment and thereby the reduction of the flocculant discharges into the river by June 30, 1973. In May, 1972, DEP extended the compliance date until November 30, 1973. Schedules were set for the submission and approval of various engineering proposals and for the start of construction. Although plans for the discharge treatment facilities which petitioners seem to favor were eventually approved by DEP, for numerous reasons, none the least of which was the Water Company's apparently precarious financial position, construction on those facilities has yet to begin.
Shortly after DEP first extended the facility's completion date, Congress enacted the 1972 Amendments to the FWPCA.*fn3 Those amendments created, among other things, the NPDES, a system which seeks gradual reduction and, hopefully, elimination of pollutants through the requirement of restrictive permits to those who currently discharge such wastes.*fn4 Section 402(a)(1) of FWPCA placed the initial responsibility for issuing the NPDES permits with the Administrator of the Environmental Protection Agency ("Administrator"). Sections 402(a)(5) and 402(b) of the FWPCA,*fn5 however, operate to transfer that responsibility to the respective states, upon each State's request, if the Administrator determines essentially that the requesting State's permit program will meet the requirements of the FWPCA. Connecticut's program was approved and authorized by the Administrator on September 26, 1973.
Consequently, the original DEP order No. 979 was apparently transformed by DEP into a draft NPDES Permit No. CT 0001325 on April 1, 1974.*fn6 That draft permit continued the requirement that the approved treatment facilities be placed in operation. As can be seen, however, the original compliance date contemplated in order No. 979 had already passed. Subsequently, on March 10, 1975, DEP modified the draft NPDES permit, and issued a formal NPDES permit establishing alternative requirements, namely, that the treatment facilities be completed by July 31, 1977 or that, by the same date, the Water Company connect its discharges to a municipal sanitary sewer system proposed for construction in the area by the Town of Greenwich.*fn7
The petitioners objected generally to DEP that the permit as issued was inadequate, that the delays and failure to remedy the discharges in accordance with original order No. 979 were inexplicable, and that the sewer connection alternative did not provide a realistic means for eliminating the discharges since there was no guarantee that such a sewer would ever be constructed by the Town of Greenwich. DEP then conducted a hearing on the permit, at which hearing complaints were aired and more information was gathered. As a result of that hearing, DEP, pursuant to its authority under Chapter 474a of the Connecticut General Statutes,*fn8 officially modified,*fn9 the permit on August 26, 1975. Much to the dismay of the petitioners, the modification, rather than requiring an earlier compliance date, extended that date and removed entirely the provisions for the construction of treatment facilities. The modified permit requires that the Water Company connect its discharges to the Greenwich sanitary sewer by July 31, 1978, thereby completely eliminating any discharge into the Mianus River.
The petitioners challenged the validity of the NPDES permit, as modified, by seeking review in this Court on November 24, 1975 pursuant to § 509 of the FWPCA. They assert that the permit is invalid for two reasons: first, that since the compliance date is July 31, 1978, the permit does not comply with the FWPCA's directive that a permit require the application of the "best practicable control technology" toward the reduction of polluting discharges by July 1, 1977,*fn10 and second, that since the Greenwich sanitary sewer does not now exist in the vicinity of the filtration plant, and since only the Town of Greenwich can extend the sewer to that area, the permit essentially requires compliance with an act which is not wholly within the control of the permittee Water Company.
Although the respondent Commissioner of DEP has defended the validity of the modified permit on the merits, he has also moved to dismiss the petition for review, and has been joined in such motion by the Administrator, on the jurisdictional ground that § 509(b)(1)(F) of FWPCA*fn11 provides for review in the appropriate Court of Appeals of only the " Administrator's action. . . in issuing or denying any permit under section " of that Act, not the issuing or denying of such a permit by a State. (Emphasis supplied.) We agree with the respondents and dismiss the petition without reaching the merits.
It is rather clear that jurisdiction in the Court of Appeals to review the issuance, denial or modification of an NPDES permit, if it exists at all, is to be found in § 509 of FWPCA. Cf. Sun Enterprises, Ltd. v. Train, 532 F.2d 280, 288 (2d Cir. 1976). The plain words of that section, however, clearly specify review of only the "Administrator's action," the term "Administrator" being defined in § 101(d)*fn12 as the Administrator of the Environmental Protection Agency. Section 509 leaves unmentioned the review status of permits issued or denied by one other than the Administrator. Because that section explicitly mentions only action of the Administrator and because, as will be discussed infra, the legislative history of § 402 clearly shows that Congress intended that the States have a great deal of autonomy in administering their own permit programs, we see no reason to extend the explicit jurisdictional grant to "action" of anyone other than the Administrator. Where, as here, the NPDES permit was undeniably issued and modified by a State agency pursuant to its own authority under § 402, one is hard pressed without more to find such "Administrator's action."
In order to fit this case within § 509's "Administrator's action" requirement, the petitioners have advanced two theories: (1) that DEP, in acting upon NPDES permits, serves as the Administrator's agent, thereby rendering the State's action an action of the Administrator through a delegation of authority, and alternatively, (2) that since the Administrator has the authority to reject or "veto" any particular application made by a polluter to a State for an NPDES permit, his failure to veto the application is his "action" sufficient for the jurisdictional purposes of § 509. We find neither theory persuasive.
The delegation of authority theory, although perhaps appealing at first glance, fails upon a more thorough examination of the structure of the NPDES permit programs created under § 402. Subsection (a)*fn13 of § 402 places with the Administrator the initial authority for administering the permit program under NPDES, but further requires, during an initial transitional period, that he " shall authorize a State, which he determines has the capability of administering a permit program which will carry out the objective of this chapter, to issue permits for discharges into the navigable waters within the jurisdiction of such State." (Emphasis supplied.) Subsection (b)*fn14 of § 402 sets forth more specifically the procedures and requirements which a State program must meet in order to qualify for that subsection's directive that the "Administrator shall approve " such a State's application to administer its own more permanent permit program. (Emphasis supplied.) Finally, subsection (c)*fn15 of § 402 directs that the federal permit issuing program shall be suspended in such States where a valid State program continues to operate. Such a system for the mandatory approval of a conforming State program and the consequent suspension of the federal program creates a separate and independent State authority to administer the NPDES pollution controls, in keeping with the stated Congressional purpose "to recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution. . . ." FWPCA § 101(b).*fn16 Congress has not created a discretionary power in the Administrator to delegate his own authority to States with sufficient programs; it has clearly directed that the States are to administer the permit system if the Administrator determines that applying States have sufficient programs. Moreover, the Administrator's determination that a State program does or does not meet the statutory criteria for approval is reviewable in the appropriate Court of Appeals. FWPCA § 509(b)(1)(D).*fn17
(9) To insure that any industrial user of any publicly owned treatment works will comply with sections 1284(b), 1317, and 1318 of this title.
According to the initial comments of the Senate Committee on Public Works, which favorably reported out original Senate Bill No. 2770:
The legislation will restore Federal-State balance to the permit system. Talents and capacities of those States whose own programs are superior are to be called upon to administer the permit system within their boundaries. The Administrator is to suspend his activity, insofar as the permit system is concerned, in these States.
Senate Report No. 92-414, in 2 Legislative History of the Water Pollution Control Act Amendments of 1972 (compiled for the Senate Comm. on Public Works by the Library of Congress), Ser. No. 93-1, p. 1426 (1973) (hereinafter "Leg. Hist.")*fn18
At various places in the original Senate Report, there is mention of the concept of the Administrator's "delegation" to the States. Those references, apparently made in passing, however, do not measure up well to more specific statements to the contrary made later in the House Report accompanying its amendments to the Senate Bill. House Report No. 92-911, 1 Leg. Hist. 753, 814, in which the amendments were construed, makes clear that each State's action would be its own:
Since permits granted by States under section 402 are not Federal permits - but State permits - the certification procedures [required by section 401] are not applicable.
Finally, in recommending adoption of the House amendments, with further minor modification, the Senate Conference Report described the dual permit programs contemplated by those amendments as follows:
Provision is made for a State to administer its own permit program in lieu of the Administrator's program, and the Administrator is required to approve a submitted State program unless he finds that there is not adequate authority to issue the permits in accordance with the requirements of this Act. [emphasis supplied]
Senate Conference Report No. 92-1236, 1 Leg. Hist. 322. It is quite clear from the committee reports that Congress intended that the States' programs were to be their own and that it was fully aware of the difference between States' and Administrator's permits.
To be sure, the FWPCA manifests a Congressional desire that minimum federal effluent standards and limitations be established and uniformly applied throughout the country. Indeed, one of the motivating forces behind the enactment of FWPCA was the fact that prior attempts at control of water pollution had resulted in confusion between State and federal roles and in the ineffective and uneven application of standards among the several States. EPA v. State Water Resources Control Board, 426 U.S. 200, 96 S. Ct. 2022, 48 L. Ed. 2d 578, 44 U.S.L.W. 4781 (1976). It does not necessarily follow from that concern, however, that federal involvement, either administrative or judicial, at every stage of the remedial effort is the only manner by which minimum standards can be attained. Minimum standards are attained in the FWPCA by the Administrator's promulgation of such standards (which the State programs must honor), by his approval of those programs and by his power to review*fn19 both the performance of the programs and individual applications for State NPDES permits.
By the contemplation of minimum federal standards, however, Congress did not intend to relegate the States to the status of enforcement agents for the executive branch of the federal government. To the contrary, it is indisputable that Congress specifically declined to attempt a preemption of the field in the area of water pollution legislation, and as much as invited the States to enact requirements more stringent than the federal standards. FWPCA § 510;*fn20 EPA v. State Water Resources Control Board, supra, 44 U.S.L.W. at 4786; See also Metropolitan San. Dist. v. United States Steel Corp., 30 Ill. App.3d 360, 332 N.E.2d 426 (1975); State v. Republic Steel Corporation, 38 Ohio Misc. 43, 311 N.E.2d 911 (Mun.Ct. 1973). A State that has enacted more stringent standards thus could, and presumably would, without violating the FWPCA, issue NPDES permits containing those more stringent requirements. To conclude that a State's issuance of such an NPDES permit is "Administrator's action" subject to direct review by this Court, would in some cases result in our being required to review issues involving only a State agency's application and interpretation of purely State law. We are loath, without more convincing and specific authority than exists here, to read into the FWPCA a Congressional desire to reach such a result, a result which would raise problems going directly to the heart of our federal system.
Petitioners' second attempt to find "Administrator's action" in the issuance of a State NPDES permit rests upon the Administrator's authority to review and, if necessary, to veto individual applications for such permits. Subsections (d), (e) and (f)*fn21 of § 402 set out that authority. Subsection (d) provides that each State operating an approved program shall transmit a copy of each NPDES permit application to the Administrator, that no permit shall issue if the Administrator objects within ninety days of his receipt of the application and that the Administrator may waive his objections to any permit application. Subsections (e) and (f) provide further that by issuing guidelines and regulations, the Administrator may also designate particular categories of pollution sources ("point sources") for which he will waive both his notice and veto rights.
In the instant case the Administrator did not, of course, reject or veto the Water Company's application, but instead, without comment, allowed DEP to make the modification now in question. In the absence of any indication that the Administrator affirmatively waived his veto power pursuant to §§ 402(e) or 402(f), it appears that he merely allowed the ninety day time period within which he must make objection under § 402(d)(2) to elapse without taking any action.*fn22 Petitioners contend that the Administrator's silence is reviewable "action" since it amounts to his tacit approval of the State permit. We do not agree.
Just how active a role the Administrator was expected to play in reviewing each particular State permit application is unclear from the statute itself. Section 402(d)(2), of course, gives the Administrator the power to review and reject any particular individual application for a State permit. Yet, seemingly in the same breath, § 402(d)(3) relieves him of any duty to do either. The review power, as taken from the words of the statute, seems to be entirely discretionary. The legislative history of § 402 confirms that view and further shows that Congress intended that the Administrator should, more often than not, take no "action" with respect to proposed State permits. The Senate Public Works Committee Report, supra, commenting on the original Senate bill, foresaw that a valid State program, once approved by the Administrator, should require little day by day supervision with respect to individual permit applications:
Although the Administrator is given the authority to review any permit before it is issued by a State, the Committee expects that . . . the Administrator will withhold his review of proposed permits which are not of major significance. If the Administrator finds that a State program is inadequate to mitigate his involvement he should not approve a State program.
2 Leg. Hist. 1489.
The next several lines of the Senate Report*fn23 reflects a significant difference between the original Senate bill and the Conference amendments finally enacted. Section 402(d)(2) of the Senate bill provided that "no permit shall issue until the Administrator is satisfied that the conditions to be imposed by the State meet the requirements of this Act." Consequently, the original version of § 402 contemplated a "permit-by-permit" review by the Administrator over all categories of point sources which he did not exempt by regulation under §§ 402(e) and 402(f). Further, under the original Senate version of §§ 402(c)(2) and 402(c)(3), a State could not issue a permit without the Administrator's approval unless he specifically waived his right to object within thirty days after receiving notice of the particular permit application involved. Thus, although the Senate hoped that the Administrator would maintain a low profile vis-a-vis "insignificant" State permit applications, it would have nevertheless required his approval for each one.
The final version of §§ 402(c)(2) and 402(c)(3) changed the emphasis of the Administrator's review power dramatically. The requirement that the Administrator approve all permits was replaced with a conditional proscription that no permit shall issue if the Administrator "objects" within ninety days. This change in emphasis first appeared in the House amendments. The House Committee Report reveals the reasoning behind the change as follows:
The Committee considered extensively the proposition that all permits issued by the States ought to be subject to review and possible veto by the Administrator. During the Committee's hearings, the Governors and other representatives of the States, almost unanimously, stressed the need to put the maximum responsibility for the permit program in the States. They deplored the duplication and second guessing that could go on if the Administrator could veto the State decisions. The Committee believes that the States ought to have the opportunity to assume the responsibilities that they have requested. If, however, a State fails to carry out its obligations and misuses the permit program, the Administrator is fully authorized under subsection (c)(3) of this section to withdraw his approval of a State program.
The Committee has included a provision in subsection (b) that any permit program administered by a State must insure that any other State whose waters may be affected by the issuance of a permit have an opportunity to submit written recommendations with respect to the permit application. If any part of the recommendations are not accepted by the permitting State, the affected State and the Administrator must be notified in writing of its failure to accept such recommendations together with its reasons for so doing. Subsection (d)(2) provides that no permits shall issue if the Administrator within 60 days of his notification objects to the issuance of such permits. The committee has included this procedure to protect States which might otherwise be affected by the issuance of a permit in a second State.
House Rep. No. 92-911, 1 Leg. Hist. 814. It is clear, therefore, that the bill was specifically amended to remove the Administrator's duty to engage in a "permit-by-permit" review of a State's actions with respect to individual permits. Although the Act retained the Administrator's general supervisory duty to review the performance of the State programs, Congress clearly intended his role with respect to individual State permits to be passive on the whole. That view of the Administrator's role prevailed in conference.
In discussing the Administrator's review function during House debate on the Conference Report, Congressman Wright, a House Manager of the bill, stated:
If the Administrator, within 90 days of the transmittal date of a proposed permit by the State, objects in writing to the issuance of the permit . . . the proposed permit shall not issue. This means that if the State proposes to issue an unlawful permit or one which does not meet the guidelines and regulations of this act, the Administrator may stop the issuance of the permit.
I must give added emphasis to this point. The managers expect the Administrator to use this authority judiciously; it is their intent that the act be administered in such a manner that the abilities of the States to control their own permit programs will be developed and strengthened. They look for and expect State and local interest, initiative, and personnel to provide a much more effective program than that which would result from control in the regional offices of the Environmental Protection Agency.
1 Leg. His t. 262.
The instant case demonstrates that the Administrator has assumed the precise role that Congress hoped he would. The record reveals nothing to indicate that the EPA regional office exercised or attempted to exercise any "control" over DEP with respect to the DEP permit modification here. Nor does it indicate that the regional office manifested any approval of the State action. To the contrary, although EPA was aware of the State action, the record shows that the federal agency took no action at all. Such inaction, predicated upon the statute's express design, can hardly be described as "Administrator's action . . . in issuing . . . [a] permit" within the ambit of judicial review contemplated by § 509(b)(1)(F).*fn24
This is not a case where the Administrator has become inextricably involved in the issuance of the State permit. In a case similar to the one at bar, but one in which the plaintiff alleged that a State agency had merely "rubber stamped" an EPA permit recommendation, the District Court for the Northern District of California held that "the mere failure to disapprove a state administrative action cannot be deemed decision-making by a federal body." Shell Oil Company v. Train, 585 F.2d 408 (N.D. Cal. 1976) p. 14.*fn25 While we approve of that statement, we have no occasion in this case to comment upon whether or not and to what extent EPA involvement with a State in approving a State permit could rise to the level of "Administrator's action" reviewable under § 509.
Admittedly, had the Administrator exercised his right of review and rejected the Water Company's permit application, that rejection would clearly be subject to review as "Administrator's action."*fn26 Where the opposite is the case, however, to wit, where a State alone has issued an NPDES permit, no "Administrator's action" is involved. Accordingly, since § 509 provides for review in this Court of only "Administrator's action" and since the instant permit modification was made entirely by DEP, not the Administrator, we have no jurisdiction, and the petition for review must be dismissed.